DATE: 20010126
DOCKET: C33222
COURT OF APPEAL FOR ONTARIO
CATZMAN, CHARRON AND MACPHERSON JJ.A.
BETWEEN:
CANADIAN COMMUNITY READING
F.J.C. Newbould, Q.C. and
PLAN INC. and INTERPROVINCIAL
A.A. Blumenfeld
CIRCULATION LIMITED
for the appellants
Plaintiffs (Appellants)
- and -
QUALITY SERVICE PROGRAMS INC.,
Donald Houston and
QSP, INC., MACLEAN HUNTER
Eliot N. Kolers for the
PUBLISHING LIMITED, LES EDITION
QSP respondents, the Reader’s
MACLEAN HUNTER LIMITÉE, THE
Digest and James Ring
READER’S DIGEST ASSOCIATION
(CANADA) LTD., TELEMEDIA
Kent E. Thomson and
COMMUNICATIONS INC., JAMES RING,
Linda Plumpton for the
GLORIA MACDONALD AND
Maclean Hunter respondents
HOWARD ADAMS
and Howard Adams
Defendants(Respondents)
Andrew M. Diamond and
Allan D. Coleman for the
respondents Telemedia
Communications Inc. and
Gloria MacDonald
Heard: October 20, 2000
On appeal from the decision of Justice M.L. Benotto dated October 27, 1999.
MACPHERSON J.A.:
A. OVERVIEW
[1] The plaintiff Canadian Community Reading Plan Inc. (“CCRP”) appeals from the summary judgment decision of Benotto J. dated October 27, 1999 dismissing most of its claims against two magazine publishers and one magazine distributor. The plaintiff Interprovincial Circulation Limited (“ICL”) seeks leave to appeal the costs order made against it.
[2] CCRP was incorporated in 1992 to enter the school magazine subscription fundraising business in Canada, a business in which students sell magazine subscriptions to their families and others. The profits from sales of the magazines are split among the schools, CCRP and the magazine publisher. ICL has for many years been in the business of selling magazine subscriptions door-to-door across Canada. Howard Shannon has been the president and principal of both CCRP and ICL.
[3] At the time CCRP was formed, the defendant Quality Service Programs Inc. (“QSP”) was the only magazine distributor in the school magazine fundraising market in Canada. QSP was owned by the two largest magazine publishers in Canada, the defendants Maclean Hunter Publishing Limited (“Maclean Hunter”) and The Reader’s Digest Association (Canada) Ltd. (“Reader’s Digest”), each publisher owning 50 percent. The defendant QSP, Inc. (“QSP USA”) is an American company affiliated with QSP in the magazine distribution business. The defendant James Ring was the President of QSP at the relevant times. The defendant Howard Adams was an officer of Maclean Hunter and a director of QSP.
[4] The defendant Telemedia Communications Inc. (“Telemedia”) was the third largest publisher in Canada. The defendant Gloria MacDonald was its vice-president of circulation.
[5] CCRP alleges that the defendants took a series of steps to drive it out of the school magazine fundraising business, thereby unlawfully lessening competition and causing economic injury to CCRP. CCRP’s principal claim is that the defendants unlawfully conspired to injure it contrary to the common law, and unlawfully conspired to unduly lessen competition contrary to the Competition Act, R.S.C. 1985, c.C-34. In addition, CCRP claims that all defendants other than Telemedia wrongfully interfered with its economic relations and induced a breach of contract between Telemedia and CCRP. CCRP further claims that QSP unlawfully defamed it and that Telemedia breached a term of its contract with CCRP when it entered into an exclusive distribution arrangement with QSP.
[6] The defendants brought motions for summary judgment. The motions judge granted most of the relief sought by the defendants. She dismissed the conspiracy claims, the claim for breach of contract and the claim for inducing breach of contract made against all defendants concerned. She dismissed the claim for wrongful interference with the economic relations between CCRP and Telemedia as against all defendants concerned except QSP. She also ordered that CCRP’s defamation claim against QSP should proceed to trial. The motions judge also made an order for costs against both CCRP and ICL despite the fact that ICL’s claims were not successfully attacked on the summary judgment motion.
[7] CCRP appeals those components of the motions judge’s decision dismissing various aspects of its claims against the defendants. In the event that CCRP’s appeal is unsuccessful, ICL seeks leave to appeal the costs order made against it.
B. ISSUES
[8] The issues raised by this appeal are:
(1) Did the motions judge err by dismissing CCRP’s claims in conspiracy to injure contrary to the common law and to unduly lessen competition contrary to the Competition Act?
(2) Did the motions judge err in dismissing CCRP’s claim for wrongful interference with economic relations?
(3) Did the motions judge err in dismissing CCRP’s claim for inducing breach of contract?
(4) Did the motions judge err in dismissing CCRP’s claim for breach of contract?
(5) Did the motions judge err in ordering costs against ICL?
C. ANALYSIS
(1) The Conspiracy Claims
[9] CCRP contends that the motions judge failed to apply the proper onus for assessing a claim of conspiracy on a summary judgment motion, misconstrued the requirements of s. 45 of the Competition Act, and improperly made findings of fact and drew inferences when the evidence was contested.
[10] I do not agree with the first of these contentions. In my view, at a general level the motions judge had a proper understanding of her role on a Rule 20 motion. She said, correctly in my view: “My role as a motions judge is narrow: to assess the threshold issue of whether a genuine issue exists as to material facts requiring a trial”.
[11] In my view, it is not necessary on this appeal to consider the motions judge’s interpretation of s. 45 of the Competition Act. CCRP contends that the motions judge failed to distinguish between the civil action in conspiracy at common law and a conspiracy action under the Competition Act. I do not think that this distinction made any difference to the motions judge’s analysis. Her central point was that one of the essential components of a conspiracy claim, whether under the common law or the Competition Act, is “[a]n agreement must be established in the sense of a joint plan or common design”. The motions judge found that there was no evidence of an agreement.
[12] It is this conclusion that leads me to CCRP’s third contention, with which I agree. In my view, the record before the motions judge should have led her to the conclusion that there were sufficient contested material facts to require that the conspiracy claims proceed to trial.
[13] The motions judge engaged in a review of the evidence, dealing separately with the Maclean Hunter, QSP and Telemedia defendants. Her conclusion with respect to each group of defendants was that there was no evidence of common design or agreement. Typical of the way she expressed her conclusions was her final paragraph relating to the Maclean Hunter defendants:
There is no evidence that would support a finding of a common design or agreement. The threshold on an important element of conspiracy has not been met. The evidence relied on by the plaintiffs could not create an inference of a combination or lead a “rational trier of fact to find for the non-moving party”. Absent evidence, direct or circumstantial, of this element of the conspiracy claim, there is no genuine issue for trial against Maclean Hunter and Howard Adams.
[14] In my view, there is some evidence that, if accepted by a trier of fact, could support a finding of common design or agreement. By way of illustration, I would highlight the following relationships among the defendants and their alleged conduct.
[15] First, the distributor QSP was owned by the publishers Maclean Hunter and Reader’s Digest at the relevant time. QSP had Maclean Hunter representatives on its board. It is arguable that in the marketplace the role of a magazine distributor is to sell magazines, presumably from as many publishers as possible. QSP’s ownership by two publishers raises the obvious spectre of whether its distribution function might be narrowed to focus on the magazines produced by those publishers.
[16] Second, there is evidence, from Maclean Hunter, that it tried to discourage CCRP from entering the school magazine market. It is at least arguable that a publisher would want more, not fewer, distributors, so that more of its magazines could be sold and so that distributors would compete to secure the publishers’ accounts. Yet Leslie Zold, a Maclean Hunter employee responsible for dealing with distributors, stated (in cross-examination on his affidavit) that he told Howard Shannon, the President of CCRP, that Maclean Hunter would not permit CCRP to sell its magazines because “I just told them that while we are owners of QSP it would be difficult to grant authorization to CCRP”.
[17] Third, there is, on the record, conflicting evidence about QSP’s role in Telemedia’s decision to terminate its relationship with CCRP in May 1994.
[18] In 1993, Telemedia agreed to permit CCRP to sell its magazines in Canadian schools. QSP had been doing this for Telemedia magazines for many years. From Telemedia’s perspective, two competing distributors selling its magazines made good economic sense.
[19] In April 1994, QSP and Telemedia renegotiated their contract. It appears that they reached an agreement. There was no hint that one of the terms of the agreement was an exclusivity arrangement between them. Indeed, in an internal office memorandum on April 8, 1994 announcing successful renegotiations with QSP, Gloria MacDonald, the vice-president of circulation at Telemedia, stated: “We will continue to work with Quality School Plan and each of the other agencies we currently do business with to increase remits for F95.”[^1] [My emphasis.]
[20] A short time later, on May 27, 1994, QSP and Telemedia finalized their arrangement, but with an important new term – an exclusivity arrangement. Telemedia immediately took steps to terminate its relationship with CCRP. Three days later, on May 30, Les Editions Télémédia (“Télémédia”), the Quebec division of Telemedia, also ended its relationship with CCRP.
[21] In a letter to CCRP on June 10, 1994, Ms. MacDonald explained Telemedia’s decision in this fashion:
We have specifically decided to try to hold the circulation of TV Guide down as close to 800,000 as possible, and are trying to manage subscriptions for Select Homes and Food down significantly over the next twelve months.
Ms. MacDonald did not mention that Telemedia had entered into an exclusivity arrangement with QSP. Pierre Mathieu, a former vice-president of circulation at Télémédia, stated in his affidavit that “I am aware of no business reason why Telemedia Communications would have entered into an exclusive relationship with QSP” or “would have terminated its relationship with CCRP”.
[22] Moreover, Telemedia gave a copy of its letter terminating its relationship with CCRP to QSP. Indeed, Mr. Ring, the President of QSP, had specifically requested a copy of this letter at the May 27, 1994 meeting where QSP and Telemedia had agreed to an exclusivity arrangement. It is difficult to see why Telemedia would have agreed to this request. Mr. Ring stated that he told Ms. MacDonald that he wanted it so that he could show customers that CCRP was not authorized to sell Telemedia magazines. Ms. MacDonald said that she would not have given QSP a copy of the letter if she had known how QSP intended to use it: “Absolutely not. If he [Mr. Ring] had I wouldn’t have authorized it”. Moreover, Mr. Mathieu states in his affidavit:
I am aware of no business reason why Telemedia would have given to QSP the Telemedia letter terminating its relationship with CCRP, assuming that it did so. Certainly, it was not normal business practice for any publisher to give a letter terminating a relationship with a circulation agent to that agent’s competition.
[23] Fourth, there is evidence contradicting Ms. MacDonald’s stated reason for Telemedia’s decision to terminate its relationship with CCRP, namely to lower circulation levels for TV Guide and other magazines.[^2] In QSP’s Fall 1994 catalogue, Telemedia magazines were displayed prominently, and students were invited to compete to win a trip to Disney for selling more of those magazines, including, specifically, TV Guide.
[24] Fifth, the conduct of QSP USA and its relationship to some of the other defendants potentially lend support to CCRP’s conspiracy claims. QSP USA was faced with similar litigation in the United States. A class action settled after QSP USA and Reader’s Digest lost a summary judgment motion and agreed to pay $42 million. In the present action, Peter Reifsnyder, a former vice-president responsible for the Magazine and Music Division of QSP USA, has stated in an affidavit that there was a close relationship between QSP and QSP USA and that QSP USA used exclusivity arrangements to drive competitors from the field. Reifsnyder offers the opinion that “[b]ased on my experience with QSP USA and QSP including Jim Ring, I believe the principal reason why QSP entered into this exclusive agreement with Telemedia was to make it impossible for CCRP to compete with QSP”. John Flavin, another former vice-president of QSP USA, has signed an affidavit in these proceedings to similar effect.
[25] The motions judge considered the evidence about the relationship between QSP and QSP USA and said that “if the evidence is accepted, the trial judge could infer that the so-called ‘tactics’ of the US parent were copied in Canada and used as a scheme to unduly lessen competition”. However, she continued:
There remains, however, an important piece of the conspiracy puzzle that is lacking: the evidence that, if these motives existed by QSP, they were part of a plan or design with the other defendants, in particular, Telemedia.
[26] With respect, there is some evidence that potentially links at least one other defendant to those so-called ‘tactics’. Both Reifsnyder and Flavin have stated that Howard Adams, admittedly a director of QSP but also a senior officer of Maclean Hunter, attended QSP USA meetings in the United States. In Reifsnyder’s words, “Ring and Adams attended many QSP functions where the importance of exclusive arrangements with publishers was discussed”.
[27] This evidence can be put no higher than that it potentially gives rise to an inference that both QSP and Maclean Hunter engaged in, to use the motions judge’s description, “a scheme to unduly lessen competition”. However, in a conspiracy case evidence by way of inference is often crucial. As expressed by Rinfret J. in Paradis v. The King, 1933 CanLII 75 (SCC), [1934] S.C.R. 165 at 168:
Conspiracy, like all other crimes, may be established by inference from the conduct of the parties. No doubt the agreement between them is the gist of the offence, but only in very rare cases will it be possible to prove it by direct evidence. Ordinarily the evidence must proceed by steps. The actual agreement must be gathered from “several isolated doings” . . . having possibly little or no value taken by themselves, but the bearing of which one upon the other must be interpreted; and their cumulative effect, properly estimated in the light of all surrounding circumstances, may raise a presumption of concerted purpose entitling the jury to find the existence of the unlawful agreement.
Although Paradis was a case dealing with a criminal conspiracy, in my view Rinfret J.’s observations about the role played by inferences is equally apposite in a civil conspiracy context.
[28] Moreover, with respect to conspiracy to unduly limit competition contrary to the Competition Act, s.45(2.1) specifically provides that a court “may infer the existence of a conspiracy … from circumstantial evidence, with or without direct evidence of communication between or among the alleged parties thereto”.
[29] In each of these five illustrations, I have highlighted statements and conduct by the defendants. I have made no reference to the allegations and documentation advanced by CCRP which, not surprisingly, conflict with the defendants’ positions in virtually every respect. My conclusion is that, looking only at the defendants’ side of the record, it cannot be said that there is no evidence of a common design or agreement among the defendants to injure CCRP or to unduly lessen competition. In my view, given the interrelationship between the various corporate defendants, the evidence potentially implicates all of them. Accordingly, the conspiracy claims advanced by CCRP should proceed to trial as against the corporate defendants. However, there is no evidence that the individual defendants acted other than in their respective representative capacities throughout. The claims against them personally were properly dismissed.
(2) The Claims For Wrongful Interference With Economic Relations
[30] The tort of wrongful interference with economic relations has three components: an intention to injure the plaintiff, interference with another’s method of gaining his or her living or business by illegal means, and economic loss caused thereby: see Lineal Group Inc. v. Atlantis Canada Distributors Inc. (1998), 1998 CanLII 4248 (ON CA), 42 O.R. (3d) 157 (C.A.).
[31] CCRP made a claim against all defendants other than Telemedia for wrongful interference with economic relations between CCRP and Telemedia. The motions judge permitted the claim against QSP to proceed to trial. She found that there was some evidence that QSP had disparaged CCRP in the marketplace in a sufficiently serious way to potentially ground a successful claim in defamation. She held that this potential conduct by QSP could also serve to establish the three components of the tort of wrongful interference with economic relations.
[32] The motions judge dismissed the claims against the other defendants. They had not participated in the campaign of disparagement against CCRP and the motions judge could see no other potential illegal means employed by them with a view to interfering with CCRP’s business.
[33] However, I have concluded that the conspiracy claims against all the corporate defendants should proceed to trial. If CCRP is successful on these claims, the conspiracy to unduly lessen competition contrary to the Competition Act or to injure CCRP contrary to the common law could also serve as the ‘intention to injure’ and ‘interference with business by illegal means’ components of the tort of interference with economic relations. The third component of the tort, economic loss caused thereby, would be subject to evidence at trial and, presumably, would relate to any business that CCRP lost as a result of the conduct of the defendants. It follows, therefore, that these claims should also proceed to trial with respect to those corporate defendants against whom CCRP has made the claims.
(3) Inducing Breach of Contract
[34] CCRP claimed against all defendants other than Telemedia for inducing a breach of the contract between Telemedia and CCRP. CCRP conceded before the motions judge that this claim should be dismissed against Maclean Hunter and Adams but seeks to pursue the claim against the other concerned defendants. This claim relates to the contract concluded by QSP and Telemedia on May 27, 1994. The exclusivity term of that contract led Telemedia to terminate its relationship with CCRP.
[35] The relationship between CCRP and Telemedia was governed by a written contract. The contract had a renewal and termination clause which provided:
The term of this Agreement will be one year and will automatically renew for consecutive one year periods, unless written notice is given by one of the parties to the other. Either party may terminate this agreement by giving the other party 120 days written notice of such termination.
[36] On May 27, 1994, Telemedia notified CCRP that it intended to terminate its relationship. In her letter, Ms. MacDonald said:
Therefore, as of May 30, 1994, please consider this letter official notification that the above mentioned magazines should not appear in the CCRP catalogue after the 120 day notice our contract specifies (copy of contract attached).
[37] The motions judge held that Telemedia’s termination of its relationship with CCRP complied with its contract. There was no breach; hence there could be no tort of inducing breach of contract. She concluded her analysis on this issue with this succinct summary:
Telemedia’s contract with CCRP was not breached, but was terminated in accordance with its terms. The procurement of a “breach” of a contract is an essential element of the tort of “inducing breach of contract”, there can be no tort where the contract contains a termination clause and is properly terminated.
[38] CCRP claims that the motions judge erred in her interpretation of the renewal and termination clause. CCRP contends that the clause is ambiguous. One interpretation, adopted by the motions judge, is that the contract could be terminated at any time, provided that 120 days notice was given. A second interpretation, advanced by CCRP, is that termination could be effected by giving the 120 day notice only on the anniversary date of the contract[^3]. This ambiguity, asserts CCRP, should have led the motions judge
to refer this issue to trial.
[39] I disagree. The issue is a straightforward one of interpreting contractual language. There are no material facts in dispute. Hence it was appropriate for the motions judge to determine the issue.
[40] On the merits, I agree with the motions judge’s interpretation of the clause. CCRP drafted the contract. If it had wanted to limit Telemedia’s right to terminate the contract to a single day each year (a far-fetched proposition, in my view) it could have done so by inserting the words “on the anniversary date” after the words “unless written notice is given” in the first sentence of the clause. It did not do so.
[41] In Cobban v. Pacific Forest Products Ltd., [2000] B.C.J. No. 954 (S.C.), the British Columbia Supreme Court interpreted a similar provision, albeit in an employment contract. Shabbits J. interpreted the relationship between the renewal and termination language in the contract in this fashion, at paras. 44-45:
However, I do not agree that the 15 day clause relates to renewal, or that there could have been any confusion or misunderstanding as to the meaning of the 15 day clause. This clause, which reads: “Either party can exercise the option to terminate this agreement by delivering 15 days prior notice to the other party” could not have been meant to relate to renewal being associated with funding. That suggestion flies in the face of the clear wording of the provision.
The 15 day clause can mean nothing else but that at any time during the duration of the agreement, whether that was within the initial one year term, or within a renewal period, either party could exercise the option to terminate the agreement by delivering 15 days prior notice to the other party. In my opinion, the clause is unambiguous and straightforward and the plaintiff is bound by it.
[42] I agree with this analysis and think it equally applicable to the contractual term in issue in this action. That term is also, in my view, “unambiguous and straightforward”. Accordingly, the motions judge was correct in finding that the contract permitted Telemedia to terminate its relationship with CCRP, provided it gave 120 days notice at any time during the life of the contract. She was also correct in concluding that Telemedia had complied with this contractual term.
[43] CCRP further argues that, because the contract was ambiguous, the motions judge erred in failing to consider the parole evidence of a collateral agreement by Telemedia not to enter into an exclusive relationship with QSP. CCRP’s claim against the defendants for inducing a breach of contact extends to this alleged oral agreement. In my view, the motions judge was correct in concluding that this evidence was inadmissible. This issue is discussed more fully below. Hence, since the contract had not been breached, it would be impossible to establish the tort of inducing breach of contract against any of the defendants.
(4) Breach of Contract
[44] CCRP claims that there was a collateral oral contract between it and Telemedia to the effect that Telemedia would not enter an exclusive arrangement with QSP. CCRP says that it would not have entered into a relationship with Telemedia without this assurance. CCRP relies on the evidence of its co-owners and senior officers, Mr. Shannon and Mr. Ewanchyna, who stated that two Telemedia employees told them in 1993 that Telemedia would not enter into an exclusive arrangement with QSP.
[45] The motions judge dismissed this claim. She said:
The plaintiffs seek to import this alleged representation into the agreement. The difficulty is that it is inconsistent with the clear wording of the agreement. If Telemedia could, as the agreement says, terminate on 120 days notice, then an argeement not to give QSP an exclusive is meaningless to CCRP and conflicts with the clear wording of the contract.
[46] I agree with this reasoning. Moreover, I note that CCRP drafted its contract with Telemedia. Exclusivity arrangements were well-known in the industry; indeed Mr. Shannon admitted that he had a good deal of experience with them. Accordingly, if CCRP had wanted to protect itself from the possibility that Telemedia might enter into an exclusivity arrangement with another distributor, it could have addressed this in its contract.
[47] In short, in a contract that permits termination with 120 days notice, what Telemedia did after its relationship with CCRP was over is irrelevant.
(5) The Costs Order Against ICL
[48] ICL claims against Reader’s Digest for an accounting and damages for breach of contract and against QSP for disparagement. The latter claim against QSP was the only claim under attack on the summary judgment motion and the motion was unsuccessful in this respect. Hence ICL takes the position that there was no basis upon which to order costs against it.
[49] The defendants disagree. They state that ICL joined in CCRP’s conspiracy allegations, as evidenced in certain paragraphs of the pleadings, and that it is on this basis that the motions judge included ICL in the costs order. They submit that there is no basis to interfere with the motions judge’s discretion.
[50] In my view, it is not necessary to determine whether ICL in effect joined CCRP’s allegations so as to attract a joint liability for costs. Since I would allow CCRP’s appeal with respect to the conspiracy claims, the costs order on the summary judgment motion must necessarily be revisited. I deal with the issue of costs at the conclusion of these reasons.
D. DISPOSITION
[51] I would allow CCRP’s appeal with respect to the appellant’s claims in conspiracy and wrongful interference with economic relations and would dismiss the summary judgment motions on those claims. The conspiracy claims should proceed to trial with respect to all of the corporate defendants. The wrongful interference with economic relations claims should proceed to trial against the defendants Maclean Hunter, QSP, QSP USA and Reader’s Digest.
[52] I would dismiss CCRP’s appeal with respect to its claims for inducing breach of contract and breach of contract. The motions judge did not err in determining that there was no genuine issue for trial in relation to these claims and in dismissing them. I would also dismiss CCRP’s appeal with respect to the individual defendants.
[53] As to costs, I would observe that success appears to have been about evenly divided, both on the appeal and on the motions for summary judgment. I would therefore set aside the motions judge’s order as to costs as against both appellants, except insofar as the personal defendants are concerned, and make no order as to costs on the motion and on CCRP’s appeal.
[54] In view of the result on CCRP’s appeal, it is not necessary to deal with ICL’s contingent appeal. It is dismissed without costs.
RELEASED:January 26, 2001
(signed) “J. C. MacPherson J.A.”
(signed) “I agree M. A. Catzman J.A.”
(signed) “I agree L. Charron J.A.”
[^1]: ‘F95’ is a reference, I imagine, to the Fall 1995 school subscription campaign.
[^2]: I note in passing that, as the motions judge explained in her reasons, lower circulation levels are sometimes economically desirable: “It is common in the magazine sales industry for a publisher to withdraw a sale authorization as a means of managing circulation levels. The high cost of production requires that the publisher, whose revenue is mainly from advertising, attempt to determine the number of sales that will maximize profits. It is not always the case that more sales mean more revenue”.
[^3]: I note in passing a third potential interpretation of the renewal and termination clause, namely that the notice of termination had to be given at least 120 days before the next renewal date for the contract: see Hi-Tech Group Inc. v. Sears Canada Inc. (Ont. C.A., unreported, January 11, 2001). In my view, the third potential interpretation does not arise in the present appeal, for at least two reasons.
First, Telemedia terminated its contract with CCRP on May 27, 1994 by providing notice that “as of May 30, 1994” CCRP was not to sell Telemedia’s magazines “after the 120 day notice our contract specifies”. Thus the contract concluded at the end of September 1994. The renewal date for the contract for all Telemedia magazines, except Canadian Living, was December 2, 1994. Accordingly, Telemedia’s cancellation of the contract was effective before the renewal date. It follows that the third interpretation of the clause considered in Hi-Tech Group was not available to CCRP in this action. (This point does not apply to the magazine Canadian Living which had a renewal date of August 19.)
Second, there is nothing in CCRP’s pleadings, affidavit evidence or legal argument suggesting this third interpretation. Indeed the pleadings and legal argument are expressly inconsistent with it; they assert that the contract could be terminated only on its anniversary date, in other words only on August 19 for Canadian Living and only on December 2 for all other magazines. The third interpretation, on the hand, would permit termination on any day during the first eight months in each contractual year.
In summary, there are only two potential interpretations of the renewal and termination clause relevant to this appeal. They are the two interpretations identified by the appellant and dealt with by the motions judge.